State v. Phegley

• Decision Date: 10 March 1992
• Docket Number: No. WD,WD
• Citation: 826 S.W.2d 348
• Parties: STATE of Missouri, Respondent, v. William M. PHEGLEY, Appellant. 44879.
• Court: Missouri Court of Appeals

Page 348

826 S.W.2d 348

STATE of Missouri, Respondent, v. William M. PHEGLEY, Appellant.

No. WD 44879.

Missouri Court of Appeals Western District.

March 10, 1992.

James J. Wheeler, Keytesville, for appellant.

William L. Webster, Atty. Gen. and Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, C.J., and SHANGLER and SMART, JJ.

SHANGLER, Judge.

The defendant Phegley was convicted by a jury of possession of more than thirty-five grams of marihuana in violation of § 195.202, RSMo Cum.Supp.1991, ¹ and of production of marihuana, § 195.211, and was sentenced to consecutive terms of two years and seven years.

The physical evidence used to prosecute the defendant Phegley was seized in a search of an old Methodist church building under a warrant issued by an associate circuit judge. The warrant was executed on November 2, 1989, by law officers of Chariton County, the Missouri Highway Patrol, the Internal Revenue Service and the Drug Enforcement Administration. The old church building was located in Prairie Hill, Missouri, but was part of the Salisbury mail route known as Route 1, Box 187. The mailbox outside the church structure was marked Lisa and Mike Phegley, Route 1. The building was Phegley's mailing address from June 9, 1989, until November 13, 1989, when he signed a change of address form to designate a place in Centralia as his new address.

The building searched had been a church structure, with two outside entrances. One led to the main part of the building, and the other to the basement. The basement was only accessible from an outside entrance and not from the main floor. Phegley had purchased the building, although a deed never issued. Phegley had performed some carpentry on the main floor to build some apartments, but the work was never completed.

The search was conducted at mid-morning on November 2, 1989. The windows of the building were hung at full length with blankets. The electricity was in Phegley's name, and billed to a Centralia mailing address. The water was also in his name. A car parked in front of the building was registered in Phegley's name. Lisa Shuck, whom Phegley later married, was living in the old church building at the time the officers conducted the search of the premises.

The search of the basement discovered a hydroponic marihuana cultivation operation. Water which contained nutrients was continuously pumped through and carbon dioxide, on which the plant thrived, was introduced into the air. Five hundred and sixty-seven marihuana plants were confiscated in the basement, as well as an assortment of marihuana growing equipment. Many personal effects belonging to Phegley were also seized. The search of the main floor yielded marihuana that was hanging to dry, a baggie of marihuana atop a footlocker in a bedroom, numerous articles of male and female clothing, a telephone bill addressed to Phegley at the Salisbury address, books dealing with marihuana horticulture, and numerous other items of property. The footlocker in the bedroom was unlocked and many of its contents seized. ²

In the course of the search, Sgt. Swearingen of the Missouri Highway Patrol dusted items in the grow room for fingerprints. Six of them were found to have usable prints, and Phegley's fingerprints appeared on one of the grow trays. Phegley was arrested at a sawmill in Sturgeon, Missouri, where he worked. Sgt. Belshe, who made the arrest and took custody of Phegley, also administered the Miranda warning to him. In response to inquiry as to his name and address, Phegley responded to Cpl. Benitz of the Missouri Highway Patrol that his address was Route 1, Box 187, Salisbury, Missouri. Phegley then asked Benitz "if he could tell [Benitz] something," and stated "Lisa did not have anything to do with this. She doesn't know anything about it."

Phegley brought a motion to quash those custodial oral statements as in violation of the principle of Miranda. He moved separately to quash the search warrant and to suppress illegally obtained evidence, and then to suppress the evidence obtained by the State in the seizure and search of the footlocker. Each motion was denied in turn.

Phegley presented numerous witnesses, a number of them to attest to his good character. Leslie McKenney employed Phegley at a sawmill not far from Centralia. He considered Phegley to be a dependable worker who was never absent. In the summer of 1989, they logged timber together, working the day long until darkness fell. The logging continued into the fall of 1989, and was a seven day week operation. One of the witnesses, Eddie Ray, testified that in 1983 or 1984, when he lived in Kirksville and Phegley lived in Jefferson City, Phegley allowed Ray to use his address to order lights and other such materials. Ray then retrieved the items at Phegley's. Some of the items were ordered from Superior Growers Supply, Inc., suppliers of hydroponic growing equipment. Phegley moved to Prairie Hill in the spring of 1989, and Ray received his consent to store equipment there. Ray testified that Phegley moved from Prairie Hill in 1989, but that Lisa Shuck continued to live in the old church building.

John White owned the sawmill operated by witness McKenney. In the summer and fall of 1989, Phegley scaled the logs at the sawmill. White knew Phegley was living in Centralia during that time. Rickey Anderson testified that in the summer and fall of 1989, he lived at the home of his grandmother in Centralia with Phegley. Laura Hurt lived within sight of the old church building. She had seen Phegley at the church building once or twice. She became acquainted with Lisa Shuck in the fall of 1989, and visited her in the old church building where Shuck lived. Hurt saw nothing in the building that she thought was marihuana or marihuana equipment.

Phegley testified that he left Prairie Hill because it was too far a drive from Centralia where he scaled logs for two mills. Phegley and Lisa remained friendly. He left many of his belongings with her in Prairie Hill because he had only one room in Centralia. He returned two or three times a month to see Lisa, and she visited him in Centralia. She brought him his mail, which continued to come to Prairie Hill, although he also received some at Centralia. Phegley and Lisa Shuck married in January of 1991.

Phegley confirmed the testimony of witness Ray, that he agreed for Ray to send his mail to Phegley for him to hold until Ray claimed them. When Phegley moved to the old church buidling, Ray stored items there.

The jury found Phegley guilty of possession of marihuana and production of marihuana and assessed punishment at two years and seven years imprisonment, respectively. The court ordered the sentences to run consecutively.

I. Sufficiency of the Evidence

Phegley acknowledges that evidence of either actual or constructive possession of marihuana suffices to prove the offense under § 195.202. He postulates also that the proof of production of a controlled substance under § 195.211, "almost certainly encompasses the proof of the offense of possession." Phegley argues that the evidence proves neither actual nor constructive possession, and since there was no direct proof of production of marihuana and since "constructive" production is not a workable legal precept, neither possession nor production was proven as an offense.

The Possession Offense

Definitions section 195.010(33) of the Comprehensive Drug Control Act of 1989 prescribes definitions of "possessed" or "possessing a controlled substance":

[A] person, with the knowledge of the presence of and illegal nature of a substance, has actual or constructive possession of the substance. A person has actual possession if he has the substance on his person or within easy reach and convenient control. A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it. Possession also may be sole or joint. If one person alone has possession of a substance possession is sole. If two or more persons share possession of a substance, possession is joint.

There was no evidence that on or about November 2, 1989, Phegley had the substance "on his person or within easy reach and convenient control," and so was in actual possession of the marihuana seized at the old church building premises. He was then more than forty-five miles away, at the sawmill in Centralia. Nor was there any direct evidence that Phegley manufactured the marihuana seized under the warrant.

The charge of unlawful possession of a controlled substance under § 195.202 requires proof that the accused was aware of the presence and illegal character of the particular substance and had conscious possession of it. State v. Mitchell, 811 S.W.2d 809, 812[6, 7] (Mo.App.1991). For the penal purposes of the Act, actual possession need not be shown, proof of constructive possession will suffice. "A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or control over the substance either directly or through another person or persons is in constructive possession of it." § 195.010(33). The elements of the offense, whether charged in terms of actual or constructive possession, may be proven by circumstantial evidence. State v. Vitale, 801 S.W.2d 451, 456[13, 14] (Mo.App.1990).

The definition of possession that § 195.010(33) of the 1989 enactment renders does not ease the proof required for submission under the predecessor statute, as the prosecution seems to argue. In particular, the component of the definition of possession--that a person not in actual possession who has "the power and the intention at a given time to exercise dominion or control over the substance" is in constructive possession of the substance--does not vary the meaning of...